DECKER & THAMES
[2019] FCCA 493
•7 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DECKER & THAMES | [2019] FCCA 493 |
| Catchwords: FAMILY LAW – Interim arrangements for care of child aged 2 years and 5 months – allegations of family violence and psychiatric incapacity – assessment of risk – nature of interim hearing – meaningful relationship – supervision – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Mazorski v Albright (2007) 37 FamLR 518 at 526 [26] Eaby & Speelman (2015) FLC 93-654 Deiter & Deiter [2011] FamCAFC 82 Slater & Light [2013] FamCAFC 4 B & B (1993) FLC 92-357 Moose & Moose (2008) FLC 93-375 Bright v Bright (1995) FLC 92-570 W & W (Abuse allegations; unacceptable risk) (2005) FLC 93-289 Gorman & Huffman [2016] FamCAFC 174 |
| Applicant: | MS DECKER |
| Respondent: | MS THAMES |
| File Number: | ADC 2187 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 21 February 2019 |
| Date of Last Submission: | 21 February 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 7 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Read |
| Solicitors for the Applicant: | Stanley & Co |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Culshaw Miller |
ORDERS
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The child of the relationship [X] born … 2016 “the child” live with the mother.
The father spend time with the child at the following times and subject to the following conditions:
(a)For the next six (6) Saturdays commencing 9 March 2019 between 3:30pm and 6:00pm subject to the supervision of Mr A and Ms B;
(b)Thereafter on each Saturday commencing 27 April 2019 between the hours of 3:30pm and 6:00pmand each Tuesday commencing on 29 April 2019 between the hours of 3:30pm and 6:00pm subject to the supervision of Ms B.
The time stipulated in order 2 hereof take place at the home of the father and to give effect to the order the child be exchanged under the auspices of Mr A (order (2)(a)) and thereafter Ms B (order (2)(b)) at a location to be agreed between the parties and failing agreement at the Suburb C Public Library.
The parties each create a personal email address and inform the other of it within four days of the date of these orders, which addresses are to be used for the sole purpose of exchanging parenting information concerning the child between them in a formal manner, with the information to be exchanged between them to consist of the following together with any other matter germane to the child’s care, welfare and development: her dietary requirements and any relevant preferences and allergies; any necessary modifications to handover arrangements; sleeping patterns; any illnesses or significant accidents or mishaps suffered by her; together with details of any medication prescribed for her; and any necessary medical appointments arranged for her.
To give effect to order (4) hereof the parties exchange relevant emails with the mother to initiate the applicable email exchange at 6:00pm each Friday commencing 15 March 2019.
The parties are each restrained and an injunction issues restraining each of them from denigrating, insulting, provoking or abusing the other in the presence or hearing of the child or permitting any other person to do so.
The parties are each restrained and an injunction issues restraining each of them from discussing these proceeding and the other on social media sights or posting any information about these proceedings, on such sights, which will have the consequence of identifying either the child or the parties to these proceedings or permitting any person associated with them, including friends and relatives from doing so.
The proceedings are adjourned to 25 July 2019 at 9:30am for directions.
IT IS NOTED that publication of this judgment under the pseudonym Decker & Thames is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2187 of 2018
| MS DECKER |
Applicant
And
| MS THAMES |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Decker “the father” and Ms Thames “the mother” are the parents of [X] born … 2016. The parties are unable to agree on interim or provisional arrangements for [X]’s care.
Accordingly, in difficult and conflicted circumstances, it falls to the court to make a decision in respect of care arrangements for [X], against a background of extreme acrimony and in circumstances in which there are many significant evidentiary disputes between the parties.
The central issue in the case is whether [X] is at risk of being exposed to family violence and, if so, the extent of that risk and what measures are proportionate to the degree of risk so assessed by the court. Given her age, any issues to do with her safety must be carefully approached.
The obvious difficulty arising in this context being that, at this interim stage, the court is not able to resolve definitively the many factual disputes, arising between the parties, regarding these issues of violence and their aetiology. These controversies arise not only between the parties but also between other witnesses, including professional ones.
The mother’s position is that the father is a violent and unpredictable person, who is unable to control his frequent extreme bursts of temper. She also asserts that he suffers from a borderline personality disorder, which deprives him of the requisite level of insight required to prevent his temper exploding, with potential serious consequences for a child of [X]’s tender years.
In these circumstances, she seeks orders that would see [X] spend only supervised time with her father, subject to rigorous professional supervision until such time as the father has completed a thorough program of anger management therapy, at the end of which the therapist concerned will be called upon to assess whether he is sufficiently capable of controlling his emotional lability and is otherwise “safe” to spend time with [X].
On the other hand, it is the father’s position that it is he rather than the mother, who was the victim of family violence, during the parties’ relationship and Ms Thames has significant issues to do with alcohol abuse. He refutes any suggestion that he has any psychiatric condition which should disqualify him from spending time with [X]. Rather, he asserts that his current psychiatric condition – depression and anxiety – is reactive in nature and results from him not being able to interact regularly with [X].
In these circumstances, he contends that the mother has fabricated her concerns about the risk he poses to [X] and has either exaggerated or misconstrued expert evidence relating to his psychiatric health. It is his case that he is a loving father to [X] and, for reasons as yet unclear to him, the mother is intent on diminishing or even severing his relationship with [X] for vindictive reasons arising out of her malice for him.
In these circumstances, he contends the court needs to take urgent steps to ensure he has a meaningful level of relationship with [X], which is not artificially constrained by an excessive, expensive and intrusive level of professional supervision.
He wishes to commence spending time, with [X], in his home environment, which he believes will be useful to enhancing his relationship with [X] and adding meaning to it. If necessary, as a short term measure, if the court deems it appropriate, he is open to some lay supervision being provided by his mother, Ms B.
The father commenced these proceedings in June of 2018. They have had a tortuous passage through the court system. The one thing on which the parties do agree is that the relationship between them as well as between the paternal and maternal aspects of [X]’s family, can only be described as “toxic” and this state of affairs is unlikely to change in the foreseeable future.
This baleful situation is reflected in the fact that since its commencement, the case has generated forty-five court documents, including four expert reports and many other lengthy affidavits. In my view, the case reflects the most extreme types of family law litigation in which every point is taken and the positions taken by the parties are polarised.
The expert reports are as follows:
·Dr D, a consultant forensic psychiatrist, who was consulted by the father, at his own instigation, and who has provided two reports dated 13 July 2018 and 29 January 2019;
·Dr E, a consultant forensic psychiatrist, who examined the father at the instigation of the mother, on 18 September 2018, and who provided a report on that date;
·Dr F, a registered psychologist, whom the father and mother consulted between April 2017 and March 2018. The mother’s solicitor subpoenaed her clinical notes and subsequently she has provided a report dated 25 July 2018;
·Ms G, a clinical psychologist, who provided a family assessment report dated 18 February 2019, which was jointly commissioned by the parties and involved a process of observed interaction between each of them and [X].
The parties are also involved in collateral proceedings, in the Adelaide Magistrates Court, regarding whether an interim intervention order, made in Ms Thames’ favour, should continue on a final basis. In addition, the parties have also each made complaints to police in respect of allegations of assault, at the hands of the other. For obvious reasons, this situation has done nothing to ease the extreme level of tension between the parties.
Until this point, the father has been having supervised time, with [X], at the home of the paternal grandparents, subject to the supervision of Mr A, for two hours on each Saturday. Mr A, describes himself as follows:
“Mr A offers a mobile, child focussed, impartial, vigilant and private Children’s Contact Service that assists children in Adelaide, South Australia to maintain relationships with a parent with whom they do not live especially where there is potential concern about conflict or safety in mattes before the Family Court of Australia or the Federal Circuit Court of Australia.”[1]
[1] See affidavit of Mr Decker filed 14 November 2018 at page [4]
Mr A has been supervising Mr Decker’s time with [X] since 22 September 2018, at the maternal grandparents’ home. They live in Suburb H, in the suburbs of Adelaide. From the father’s perspective, the involvement of Mr A is both prohibitively expensive and now unnecessary.
It is the father’s case that he finds it difficult to visit these premises, which provide a stilted and uncomfortable environment for him, in which to interact with [X]. He is also concerned that the maternal grandparents’ subject each of his visits to video surveillance, notwithstanding the fact Mr A is also present.
On my calculations, there have been around twenty such visits, resulting in Mr A compiling various reports of some sixty pages, which summarises his observations of the father’s interactions with [X] up to 17 February 2019.
Between September and December 2018, Mr Decker was responsible for the payment of Mr A’s fees alone. Since 4 December 2018, the parties have agreed that they will pay the cost of Mr A’s supervision in equal shares.
It is the father’s position that Mr A’s involvement with the family is an excessive expense, which he can no longer service. It is further his case that he agreed to such supervision and indeed to various psychiatric examinations in an attempt to mollify the mother’s concerns and as an act of good faith.
To utilise the words of his counsel, Mrs Read, the father asserts that he was prepared to jump through all the hoops the mother set for him, in order to maintain his relationship with [X]. However, it is now his position that it is time to move away from what he believes is both an expensive regime and an environment, which is not conducive to him having a relaxed and comfortable relationship with [X].
On the other hand, the mother seeks the continuation of Mr A’s involvement, until the parties register in either the Suburb J, City, or Suburb K Children’s Contact Centre.[2] As previously indicated, she also seeks that the father engage in anger management counselling for a period of 12 months, at the conclusion of which, the father would be required to provide, at his own expense, a report addressing the following issues:
·The length and number of sessions attended by the father;
·The documents reviewed and information sourced from third parties;
·The father’s emotional and mental health, including any description of the father’ personality, presentation or functioning;
·The father’s ability to express his frustration and reactivity; and
·Any matters relevant to the father’s capacity to spend time with [X].
[2] Hereinafter referred to as “the CCC”
Ms Thames would be open to Mr Decker spending time, with [X], subject to Mr A’s supervision, on a fortnightly basis, each Thursday from 4:00pm to 6:00pm, inside the Suburb C Library, with the time to be supervised by Mr A, once the CCC time had commenced.
It is the mother’s position that her proposal is congruent with the recommendations of Ms G, arising from the jointly commissioned family assessment report. In addition, she asserts that her proposal draws at least tacit support from the opinion of Dr F, who wrote that there was no doubt in her mind that the father fulfils the requirement for a diagnosis of borderline personality disorder.
The issue of the father’s psychiatric health and any potential threat it poses to [X]’s safety is central to the case. As with many psychiatric conditions, the accuracy of any particular diagnosis must depend upon the accuracy of the history provided by the subject of that diagnosis and indeed information provided by others about that person’s past behaviour.
Mr Decker objects to the involvement of Dr F’s evidence, in these proceedings, asserting that she is not an unbiased and objective reporter about his condition, asserting she has uncritically accepted information provided by Ms Thames.
Dr F was consulted by both the father and the mother for some form of therapeutic intervention in respect of their relationship in the form of couple counselling. In this context, it is the father’s assertion that Dr F has formed a personal aversion to him, which has affected her professional objectivity, because of her acceptance of her unqualified acceptance of everything Ms Thames has said about him. This in turn has coloured the family assessment process.
Ms G recommended that Mr Decker initially spend up to two hours a week supervised with [X] in an agreed upon public place. Thereafter, she opined that, following Mr Decker’s successful engagement in some form of anger management counselling, this arrangement could be revised and Mr Decker’s time increased, whilst the level of supervision decreased.
I will return to Ms G’s lengthy report, at a later stage in these reasons for judgment. What is apparent, however, is that she has provided no timeframe for the process, which she recommends. In addition, the father does not accept the validity of her recommendations.
Ms Thames was initially reluctant to take part in the family assessment process, notwithstanding she had ostensibly agreed to it. She applied to the court to halt her interviews with Ms G because the family violence order proceedings remained unresolved in the Adelaide Magistrates’ Court.
These proceedings have been adjourned, for completion, in March of 2019. At this time, the mother is scheduled to be cross-examined and, on this basis, she asserted that she did not wish to provide information to Ms G, which might be potentially utilised in her cross-examination. I was not prepared to defer the family assessment process.
The current proceedings also involve competing applications for settlement for de facto property. As a consequence, I have been provided with some information about the parties’ respective financial circumstances. On her financial statement, the mothers earns $62,868.00 per annum; whilst from his, the father earns $86,034.00 per annum.
The parties’ property pool consists of real estate, which is subject to a significant mortgage. Neither party, for understandable reasons, given their comparative youth, has significant stores of superannuation.
In all these circumstances, it is hard to resist the conclusion that these proceedings, which have been characterised by significant rancour and in which few concessions have been made, are being funded by others, who are interested in [X]’s wellbeing.
In this context, it is clear from the reading of Mr A’s report that the maternal grandparents, particularly the maternal grandmother are particularly protective of [X]. Ms L has provided an affidavit in the case.
From this affidavit, it is clear that she currently has an entirely negative view of the father. Much of her evidence is directed to refuting allegations of misconduct made against her and her husband by the father and raising her own concerns about his misbehaviour. It is obvious she is significantly involved in [X]’s care and loves her very much.
It is also undoubtedly the case that [X] is the focus of much love from members of her extended paternal family, particularly her paternal grandparents. In the early part of the proceedings, the paternal grandmother, Ms B and the father’s sister, Ms M provided brief evidence to the court. This evidence was solely that they were prepared to act as supervisors of any time between the father and [X] and had read the relevant professional literature in respect of their role in so doing.[3]
[3] See affidavit of Ms B and Ms M filed 5 August 2018
Given the nature of this case, which is essentially directed towards the issue of supervision and who should provide it, I was interested in what part Ms B could play in the case, particularly whether she could form some sort of neutral circuit breaker. Accordingly, of my own volition, I elected to call her to give evidence. She lives in Suburb N, in the suburbs of Adelaide.
She indicated a willingness to do whatever she could to assist her son in spending time with [X]. It was also obvious that she has a fervent desire to see [X] herself and loves the child dearly. I will return to Ms B’s evidence, in greater detail, in due course.
Accordingly, at this interim stage, the issues arising for the court can be summarised as follows:
·what is the level of risk Mr Decker poses for [X] personally;
·in particular, what is the risk that he will shake or throw or otherwise assault [X], causing her significant harm, because he loses his temper or is otherwise frustrated by her behaviour;
·further, what is the risk he will say something inappropriate to [X], particularly of a derogatory nature about her mother and so occasion the child psychological harm;
·what is a proportionate response to the degree of risk, if any, as so assessed;
·in assessing this risk, what is the relevance of allegations concerning the difficult past relationship between the parties;
·in assessing this risk, what is the relevance of any psychiatric diagnosis of the father, including the various contested diagnoses;
·in particular, what is the relevance of these factors to [X]’s personal safety, rather than that of any other individuals in the case;
·what are the implications for the emotional equilibrium of the mother and those associated with her, particularly the paternal grandmother, of [X] spending time with her father in circumstances contrary to their wishes;
·in this context, what are the implications of this for [X] herself, given the mother is her undisputed primary provider of care;
·should supervision continue, if so, how and where and by whom;
·are there emotional implications for [X], of continuing the current regime or something analogous to it, particularly in terms of her growing a meaningful level of parental relationship with her father;
·is the maternal grandparents’ home, given the level of conflict between those involved in [X]’s family, unconducive to [X] developing a comfortable relationship with her father;
·is a public locale, such as the Suburb C Library, which is not specifically orientated for assisting parents in high conflict situations, a suitable venue for the type of supervision to be provided by Mr A;
·what is the future role of paternal family members, particularly Ms B, in the case and what are the logistic implications of this;
·what is the role of CCC’s in cases of this nature;
·How should the future management of the case be conducted.
The legal context of the current proceedings
Necessarily, when parents have a conflicted relationship, it takes the court a significant period of time to resolve the various areas of dispute arising between them. Principles of both case management and practicality dictate that a similar hearing process is adopted in each such case to resolve these disputes.
Regrettably, this process can occupy many months, chiefly because there are many other pressure on the court’s business arising from other cases, which it must also manage. Necessarily cases must wait in turn for final adjudication and, in the meantime, the court must do its best to manage arrangements for the care of any child on a provisional basis.
Inevitably, a series of short interim hearings occurs, after which a final hearing date is allocated. Owing to pressures on the court’s business, the final hearing is often months away, when fixed. Invariably, this final hearing date is allotted following the making of any necessary provisional orders required to regulate care arrangements for any child or children concerned pending this hearing. These orders are not intended to be definitive or final in nature, as the evidence on which they are based is limited.
The legal principles to be applied at interim and final hearing stage are the same. However, the format of the two types of hearing is fundamentally different. Interim hearings take place in a truncated form, without cross-examination. As such, the court is not able to make conclusive findings of fact or make an accurate appraisal of the credit or parenting aptitude of the parties concerned.
At the final hearing stage, the evidence is much more extensive and more thoroughly canvassed. In particular, the parents concerned are subject to scrutiny through cross-examination and perhaps asked questions, about their past conduct or future motivation, which they may find difficult or uncomfortable to answer.
Necessarily, the final hearing stage is a more emotionally bruising experience. In addition the evidence of any professional witness is liable to be subject to scrutiny and examination made as to whether any conclusion is based on a false premise. As such, it has greater forensic utility than untested affidavit evidence and affiliated reports.
The delay arising between interim and final hearing need not always be deleterious. It may serve as a form of psychological air lock, allowing emotions to settle. It may also provide a time for reflection, in which the central issues in dispute can come into clearer focus. In addition, the parents concerned can consider what utility a contested hearing will provide or what potentially deleterious consequences may arise, particularly for the child who will be affected by them.
For obvious reasons, a bitterly adversarial case, focussing on the perceived failings of the other parent concerned, will rarely serve to enhance and support the future parenting relations between the two litigants concerned, in the months and years, which must follow the resulting adjudication.
The sole object of any parenting case is on the pursuit and safeguard of the best interests of the children affected, not on the perceived rights of the parents concerned. Because of this focus, it is invariably the case that the court obtains some form of expert appraisal of the family involved, which includes an observation of the child or children concerned, which, depending on the age of those children, will include some form of interview with them by the relevant expert.
In such reports, it is frequently the case that the expert commissioned will provide a series of recommendations for the consideration of not only the court, but also the parents involved in the case. For reasons of practicality, it is preferable that such reports be released to the parties well in advance of the final hearing, so that any recommendations and the basis on which such recommendations have been made, can be closely considered and, if appropriate, alternative means of resolving the dispute, other than litigation, be applied.
It is frequently the case that recommendations made by a family report writer are highly controversial between the parents concerned, particularly if the recommendations made favour a significant change to existing provisional parenting regimes, implemented at an earlier interim hearing stage or no such final hearing is in prospect and one party considers the recommendations made to be flawed in nature or based on a fallacious view of the evidence in the case and therefore asserts any uncritical acceptance of the report would be grossly unfair.
This scenario has the potential to create its own dilemmas, which include the following:
·it is the court, not the expert, no matter how well qualified, who is charged with the determination of the case concerned, both at interim and final hearing;
·however, any such expert has a significant advantage, over the court, because he/she has had the opportunity to have a face to face interaction with the child or children concerned, which the court will never have. The evidence of experts is potentially very useful, for obvious reasons;
·on the other hand, the expert does not have the advantage of seeing witnesses, particularly parents, subjected to the forensic scrutiny, which cross-examination provides;
·in addition, as with any interim hearing, at this stage, the methodology of the expert concerned, including whether his/her recommendations are based on some misconception or misunderstanding of the evidence, cannot be subject to scrutiny.
For these reasons, at the interim hearing stage, the court must be careful in how it approaches the recommendations provided by a family report or indeed of any other expert. On the one hand, the court should avoid an excessive number of interim hearings. On the other, such reports are highly influential in shaping the court’s view as to the outcome best suited to serve the interests of any child affected by the proceedings before it. In addition, it is invariably the case that a child’s best interests will be served if a final hearing can be avoided.
Background
The father was born on … 1981 and is employed as a tradesman. He lives in the parties’ former family home, in Suburb O, also in the suburbs of Adelaide, not too far from Suburb H. However, this property is currently on the market for sale in conjunction of the property proceedings. To Ms G, he indicated he was living in a four bedroom apartment in the suburbs of Adelaide, but was not prepared to disclose the address.
The mother was born on … 1984. She is employed as a professional. The parties met in their workplace under the auspices of Ms Thames, who also worked there. The business concerned appears to be owned by the mother’s parents. It is the father’s position that the mother’s family is extremely wealthy. He comes from more modest circumstances. His father is a labourer; his mother is engaged in home duties.
The parties commenced their relationship in late 2015 and began to live together in … 2016, approximately three months before [X] was born. They moved into the Property O property in September 2016. It is common ground that the parties separated, in difficult and controversial circumstances, on 19 April 2018, when the mother and [X] vacated the former family home. The mother and [X] are currently living with the maternal grandparents.
It is the mother’s case that she left the relationship at an earlier stage because of her concerns about how she was being treated by the father but returned to it, when she discovered she was pregnant with [X]. However, notwithstanding this reconciliation, from her perspective, the relationship between the two “was marred by physical, psychological and emotional abuse, aggression, control and intimidation perpetrated against me.”[4]
[4] See mother’s affidavit filed 14 August 2018 at [8]
The father has served seven affidavits relating to his personal evidence; the mother four. This process has created a plethora of controversies, which it is difficult to catalogue exhaustively, given the largely reactive manner in which the parties have chosen to file their affidavit material. It is also impossible to resolve these various controversies, at this stage of proceedings.
In summary, the father’s case is as follows:
·The parties’ relationship was always “rocky”. The mother had problems with alcohol, which caused her to become abusive towards him and at times physically violent;
·On 31 December 2016 the mother inflicted injuries on herself, when drunk, when she slipped in a swimming pool. The mother later attacked him, to which he responded;
·On 23 January 2018, the mother assaulted him, whilst drunk, by biting him and ripping his shirt;
·On the date of separation (19 April 2018) police were called to the family home. There had not previously been any police involvement with the family. The implication of this being that the mother’s more recent complaints against him are concocted;
·On this occasion, (19 April 2018) the mother and maternal grandmother were abusing him. Police were called. On the advice of police, he left the property in a calm state. Police records support his position;
·On 22 April 2018, he was served with an interim DVO, obtained by police on behalf of the mother;
·The interim DVO was withdrawn by police, because they were satisfied that there was no justification to make it, which accords with his view of the matter;
·He denies that he has a borderline personality disorder but is being treated by his psychiatrist, Ms P, for depression, related to his current circumstances, particularly the deprivation of his relationship with [X];
·He is not a habitual marijuana user;
·He denies assaulting the mother, when she was in an advanced state of pregnancy;
·Surveillance cameras were installed at the parties’ home for security reasons following an intruder at the premises;
·He was a “hands on” father, who is devoted to [X] and able to manage her emotional and physical needs;
·He denies either shaking or throwing [X] onto a hard surface. It is his position that the subsequent neurological examination of the child confirm his position;
·The hunting knife is a collector’s item, which the mother has photographed in order to incriminate him;
·The mother was agreeable to the posting of suggestive photographs of her on the internet because it generated money;
·The mother refers to his nationality background and that of his parents in a derogatory fashion and regards his parents as being “ill-educated migrants”;
·The father denies that he is dismissive of any allergies suffered by [X] but asserts that he has not been fully advised about them. He is offended at the mother’s assertion that his parents are not capable of understanding the concept of allergies;
·The paternal grandmother is psychologically unwell and has substance abuse issues. It is she who has assaulted him, rather than vice versa;
·His various media postings, which concern [X] largely, are anodyne and reflect his frustration with the current situation.
In summary, the mother’s case can be summarised as follows:
·The father has been diagnosed with a borderline personality disorder;
·She was subject to daily verbal abuse from him;
·The father was controlling and jealous in his behaviour towards her;
·He installed security cameras, in the home, in order to monitor her behaviour;
·The father is an habitual marijuana user;
·In … 2016, when she was seven months pregnant, the father assaulted her by restraining her abdomen so tightly that she was caused severe pain. This ultimately lead to her suffering blackouts and blurred vision and necessitated a CT scan;
·The father was subject to an intense fit of anger and loss of control, when police came to the family home on 19 April 2018;
·She has no idea why police withdrew the interim DVO. As a consequence she has sought her own DVO, against the father, raising the various incidents outlined above, particularly the 2016 incident;
·The father has threatened her safety by saying he has a “bikie” relative who will “take care” of her;
·The father has threatened to burn her house down;
·The father has access to weapons, particularly a hunting knife;
·The father posted suggestive photographs of her on the internet against her will;
·The father is a disinterested, incompetent and negligent parent, who rarely fed, changed or attended to [X];
·When [X]’s behaviour is challenging, the father becomes aggressive and agitated, which has the potential to be dangerous to [X];
·On one unspecified night, when [X] was crying and would not settle, the mother “believes” that the father either shook [X] or through her onto a hard surface. Later, the child suffered facial spasms, which necessitated her being taken to the Women’s & Children’s Hospital. However, neurological tests were found to be “inconclusive”;
·[X] is allergic to eggs and, as a consequence, the mother has access to an epi-pen. Both the father and his family disbelieve in such allergies and, in particular, the father has indicated that he proposes to feed [X] an omelette;
·The father has threatened to remove [X] from her care;
·The father has posted inflammatory messages on social media.
I concede that this is not all of the controversial issues between the parties. However, in my view, it is sufficient to particularise the extremely polarised positions of the parties. On the one hand, it is the father’s position that the mother is intent on ruining his character and has fabricated the various allegations against him in order to remove him as an active participant in [X]’s life.
On the other hand, it is the mother’s position that the father is a violent and abusive person, who has no insight into his conduct and, as such, poses a significant threat to [X]’s emotional and physical safety. In this context, each party asserts that the court needs to take urgent action – either protective of [X]; or directed to ensure that she has an appropriate and meaningful level of relationship with a parent.
Adding to the controversy is the fact that recently, in response to the mother’s application for a personal domestic violence order against him, the father has made complaints to the police about the December 2016 and January 2018 allegations of assault. From the mother’s perspective, this is an example of the father’s manipulative personality and can only be regarded as a vindictive response to her pursing her legitimate entitlement to the protection of a family violence order.
The allegations made by the mother regarding the father throwing [X], so that she sustained some form of neurological damage, manifested by the child suffering facial spasms is, in my view, the most serious allegation, going as it does to the central issue of [X]’s personal safety in the context of her possible future interactions with her father.
It is the father’s case that the currency of the mother’s allegation is significantly undermined by a report of a consultant paediatrician, Dr Q provided in July of 2017. The parties consulted Dr Q in respect of their concerns arising from [X] exhibiting earlier episodes of facial spasms. In this context, the doctor reported as follows:
“[X] has been thought to have episodes of facial spasms which are usually related to when she gets really excited and when she opens her mouth very wide, imitating her parents, and having a startled response. At the same time, there are no other associated features, like tics, ptosis, rigidity, jerking or any other involuntary movements of her limbs. These episodes are mainly when she is tired and when she is very excited, lasting for a few seconds. The parents have a video of the episodes and they did not look like any seizures, suggestive of infantile spasms.
[X] has been developing well and achieving all her milestones, and is quite advanced in her gross motor and fine motor skills. ·
On examination, she had an upper respiratory tract infection, her chest was clear, her heart sounds were dual. Abdomen was soft and nontender with no organomegaly. She had normal tone, power and reflexes in all four limbs. There was no clonus or hyperrigidity, plantars were normal. I have reassured the parents and have asked them to keep a watch out for these episodes, and if there were any other associated anormal movements. They also have an EEG booked at the Women's & Children's Hospital."[5]
[5] See father’s affidavit filed 23 January 2019 at annexure D 8
In these circumstances, it is the father’s position that the child’s propensity to have facial spasms is longstanding and does not have any sinister overtones. In addition, he points to the fact that there is no definitive evidence to indicate that the child has suffered any injury at his hand. It is his position that the same can be said so far as Ms Thames is concerned. On the other hand, it is his position that he has provided photographs of facial injuries inflicted on him by Ms Thames.
As previously indicated, the parties have trenchant criticisms regarding how the other has utilised social media to garner sympathy for themselves or to portray each of them as the victim of the other’s conduct.
In the mother’s case, she objects to the following posting of the father and other ones analogous to it:
“FAMILY COURT a place where showing love is classed as being emotionally unstable. Contacting your children is classed as harassment. False allegations are encouraged and accepted. Perjury is accepted. The truth is ignored and you pay to see someone that’s already yours.”
The father objects to a posting of the mother consisting of a photograph of herself and [X] indicating solidarity with white ribbon day and endorsed with the following statement:
“I will stand up, speak out and act to prevent men’s violence towards women.”
I regard these as being political statements. Each party is entitled to voice their respective opinions. It is, after all, a free country. To a person such as myself, who grew to maturity in a period prior to the advent of social media, I find its ways mystifying. It seems to be me to be unseemly for individuals to vent their personal conflicts to the world at large. However, I concede this may not be a widely held view and is none of my business other than for its potential implications for [X].
In this context, I am concerned at the potential for [X] to become even more embroiled in the various vitriolic disputes between the parties. These disputes belong to the adults, not to [X]. Each party seems to have been motivated, in their respective postings, to garner at least tacit support in their struggle with the other. This has only lead to the intensification of disputation between them. This is not likely to be helpful for [X].
The obvious answer to the imbroglio is to restrain each of them from further postings. In my view, neither has the high moral ground in their use of social media in this particular case.
Mr A’s evidence
As indicated above, Mr A has closely documented the many visits which he has supervised between the father and [X]. In my view, there is nothing untoward arising from these visits which indicate that [X] knows her father and that he is capable of playing and interacting with her appropriately.
Ms L, in both her affidavit material and to Mr A somewhat begrudgingly concedes this to be the case. At the end of the first session, Mr A refers to her making the following comment to him and its context:
“‘That wasn’t Mr Decker referring to Mr Decker’s child focussed behaviour compared to the issues raised by Ms Thames in her affidavit material.”
More recently again she has deposed as follows:
“I say the (sic) Mr Decker’s presentation at the visits supervised by Mr A, is vastly different to his presentation at previous visits (unsupervised) where I have observed him to be agitated, hostile, aggressive, and with very little attention paid to [X].”[6]
[6] See maternal grandmother’s affidavit filed 30 November 2018 at [18]
I have no means of assessing the veracity of her evidence in this regard. It is though abundantly clear that she has an extremely negative view of Mr Decker and is not likely to have a completely objective view of him. The fact remains, in my view, that the evidence of Mr A does indicate a viable relationship between [X] and her father.
In my view, the major issues arising from Mr A’s report concern adult issues. Firstly, Mr Decker consistently advocated, to Mr A his sense of discomfort at having to take his time, with [X], at the home of the maternal grandparents and his need to “get [X] out of this house”.
Secondly, from time to time, [X] appears to have been distracted by the presence of her grandparents in another part of the house. Thirdly, at the end of one of the visits the maternal grandmother referred to the father as a “vile creep” to Mr A. This was allegedly in response to Mr Decker making an obscene gesture to her at the conclusion of a visit, a fact which Mr Decker denies. These factors point to the maternal grandparents’ home being a tense location for the father to interact with [X].
Fourthly, Ms L described to Mr A an extreme level of anxiety at the prospect of the father having any form of unsupervised time with [X]. Again her subjective assessment of the degree of risk may not be a foolproof guide to assessing risk in this case.
Fifthly, objection was taken to the written contents of a Christmas card the father wished to leave with [X]. He provided them to Mr A who deemed them inappropriate. The content is florid and emotive and not child focussed.
Mr A was right to divert them on the basis their content might be considered to be provocative by Mr and Mrs Thames. However, in my view, the cards provided no direct threat to [X], who cannot read. Ms G seems to have been influenced by the content of the cards. In my view, I must be careful not to be diverted in assessing the likely level of risk to [X] of such hyperbolic gestures.
Dr D’s evidence
Dr D is a consultant forensic psychiatrist. The father was referred to him, at the instigation of Mr Decker’s general medical practitioner, in mid-2018, following the parties’ separation. Mr Decker reported to Dr D that he found couples therapy to be unhelpful. He also described his relationship with Ms Thames as being turbulent.
At this early stage, Dr D doubted that Mr Decker had any maladaptive behaviours in his personality, rather, he opined that the father’s symptoms of anxiety and depression were a reaction to the end of his relationship and the subsequent difficulties, which he had experienced in spending time with [X].
Dr D was requested to revisit his initial brief assessment in the light of material produced by Dr F, the psychologist who had been involved in providing couples therapy to the parties.
Dr D reported that Mr Decker had ceased his professional relationship with Dr F and had begun consulting Ms P towards the end of 2018, whom he had consulted regularly, finding her assistance helpful. In this context, it should be noted that Ms P has indicated that she is not willing to provide a report for use in these proceedings. I can understand why she would adopt such a stance.
Mr Decker indicated to Dr D that he had seen Dr F on approximately seven sessions and agreed that he had done so because Ms Thames wished him to do so because of her concerns related to “his moods, his level of anxiety and to some extent his temper”. However, the father also reported that at this time, the parties were “arguing excessively and he felt that he was becoming depressed.” At this time, he also reported that each party believed that the other was being unfaithful.
In the context of the parties various difficulties, the father reported to Dr D that he and Ms Thames had had numerous arguments, but he had never been physically aggressive towards her, but rather she had been physically violent towards him, which resulted in him having to restrain her to prevent her hurting him.
Although it is impossible for the court to make any findings of fact about this state of affairs, both because of the lack of forensic examination of the parties evidence and of Dr D’s opinion, it would appear to be the case that Dr D is more of the view that what has been described to him is consistent with situational or common couple violence, rather than coercive or controlling violence.
In the concluding section of his report, Dr D wrote as follows:
“Despite Dr F’s diagnosis of a Borderline Personality Disorder, the history I have obtained in particular in relation to his developmental years, job stability and relatively sustained marriage and his current level of functioning would suggest to me that he does not have a Borderline Personality Disorder, but has a degree of emotional lability that predominantly gives rise to anger and frustration, at times to extreme levels that can sometimes be present in people who do have Borderline Personality Disorders, but this one trait alone does not constitute a Borderline Personality Disorder per se. Mr Decker has also exhibited some paranoid behaviours that appear to be only in the context of his relationship with Ms Thames ad appear to be due to the environment of jealousy and insecurity that the relationship created.”
Dr F’s evidence
It seems relatively clear that both parties consulted Dr F in the context of their difficult relationship. The mother instructed her solicitor to subpoena Dr F’s notes in conjunction with her response to the father’s application.
The subpoena was filed on 9 August 2018 and the response on 14 August 2018. The subpoena was answered in early September 2018 and the mother’s solicitor, Ms Bishop viewed it. It has not been formally tendered into these proceedings.[7]
[7] See affidavit of Kate Ella Bishop filed 10 September 2018
In my view, with the greatest respect to Dr F, her report is somewhat misleading. She asserts that Mr Decker consulted her seven times, between April 2017 and March 2018, when she referred him to another psychologist because she felt unable to treat him because of her diagnosis of borderline personality disorder, which is apparently not her area of speciality.
A closer examination of her report, in context with other material available to me, indicates that it was the parties who consulted Dr F, not the father exclusively. Accordingly, it is likely to be the case that Dr F’s diagnosis of the father is based not only on what he told her but also upon information provided by Ms Thames.
Dr F concedes that this is the case but also indicated that the father reported to her that he struggles with “anger dis-control” and had called his partner derogatory names in anger. Dr F does not report any accounts provided by the father of the mother’s violent actions towards him, as outlined in his affidavit material and accordingly, it is not beyond the bounds of possibility, that he did not do so. Dr F’s report concludes with the following statement:
“My concern is that Mr Decker has a tendency to deflect blame, usually on his partner, and distort the truth to make himself seem like the victim. He is quite rude when he disagrees, also to our receptionists, and in my opinion he is willing to manipulate to get his way.
Whether Mr Decker is capable of physical abuse I can not say. Based on his previous behaviour he is quite capable of verbal abuse, threats, incessant texts and other forms of harassment.”[8]
[8] Ibid at page [7]
Dr F is correct to say she is unable to say definitively whether Ms Thames is capable of physical abuse. She does not opine as to the father’s parenting capacity and what level of threat he represents for [X].
Dr E’s evidence
Dr E had available to him the report of Dr F. In addition, he had access to all the affidavit material filed in the proceedings to date and so was aware of the central evidentiary conflict arising in the case. However, of the two parties concerned, he only assessed Mr Decker.
In this context, Dr E expressed his concern that the history expressed by Mr Decker, on the one hand and Ms Thames, on the other, were so different. He was also concerned that Dr F was of the view that Mr Decker had a tendency to misrepresent the truth. In this context, he reported that he had attempted to speak with Dr F, but she was unavailable to confer with him directly.
In his presentation to him, Dr E found nothing of concern in Mr Decker. He asked Mr Decker what he thought he needed to do to be a good father to [X]. In response, Mr Decker indicated that he needed to “work on his temper and stop raising his voice”.
The father further indicated to Dr E that he would not say disparaging things about Ms Thames in [X]’s presence, because he did not want the child to feel that her parents “hate each other”. He also indicated that he had commenced a domestic violence program, as a consequence of the intervention order and continued to see Ms P, who had advised him that he did not suffer a borderline personality disorder.
In generic terms, Dr E considered that Mr Decker’s affect was within normal limits and he responded to the questions put to him appropriately. As such, he considered Mr Decker to be mildly anxious, but not clinically depressed.
Under the heading relevant diagnosis, he reported as follows:
“If Mr Decker’s account is accepted then Mr Decker has some unhelpful personality traits and in particular I note he has difficulty managing anger and he described himself as normally being impulsive and a worrier and a perfectionist but he probably isn’t suffering from a personality disorder. If Ms Thames’ history is accepted and if the observations of Dr F are accurate then he probably has, at the very least, borderline personality traits and he may be suffering from a borderline personality disorder.”[9]
[9] See affidavit of Kate Ella Bishop filed 25 September 2018 at page [23]
Under the heading relevant to suggested treatment or management, Dr E wrote as follows:
“If Mr Decker’s account is accepted then it is appropriate that he continue to see Ms P for supportive psychotherapy and some mindfulness based interventions and help managing angry feelings.
If Ms Thames’ account is accepted then it would be most appropriate for Mr Decker to do a 12 month dialectical behaviour therapy program.”[10]
[10] Ibid at [23]
Under the heading matters relevant to the father’s capacity to spend time with the child Dr E wrote as follows:
“If Mr Decker’s account is accepted then he can have unsupervised time with his daughter.
If Mr Decker’s account is accepted then I recommend a period of supervised access whilst he has the above treatment.”
With the greatest respect to Dr E and without any criticism of him, his report is not particularly helpful in the context of this matter, other than he reinforces what I have already stated. The determination of this case turns on which party’s evidence is ultimately found to be more credible. This is not necessarily a question of expertise or psychiatry. It will turn upon an overall assessment of all the evidence available, which is not available at this stage of proceedings.
It is implicit in Dr E’s report that he recognises the inherent limitation in his role. His opinion depends on the veracity of the information provided to him. It is not his function to determine what is true and what is not, that is the function of the court, which is not one which can be satisfactorily undertaken at the interim stage.
As such, the central focus of the case, at this stage, must remain on the court’s assessment of potential risks to [X], within the context of such a limited hearing. This risk cuts both ways. It is potentially detrimental to [X] to deprive her of the benefits of having a meaningful level of relationship with her father. It would also be detrimental to expose her to an emotionally labile parent.
The family report and the evidence of Ms G
Ms G’s report is thirty-six pages in length. The larger proportion of that (on my calculations twenty-seven pages) is Ms G’s recitation of the parties’ criticisms of one another, which they each vented in interview with her. It is broadly congruent with the various affidavits filed by the parties themselves.
The observed interaction, between the father and [X], was not without issue. The child displayed difficulties separating from her mother and, on one occasion, asked “where’s Mr A?” Ms G did not find this surprising given Mr A’s extensive involvement with [X] and her father but, from my perspective, the purpose of the court orders is to facilitate [X] having a relationship with her father, not necessarily with Mr A.
Ms G noted that the father attempted to encourage [X] in her play activities and to demonstrate some of her skills, particularly her yoga moves. [X] was responsive to her father’s instructions.
At the end of the session, Mr Decker was noted to be able to encourage [X] to pack up the room, which she did with minimal distress. She was reluctant to leave the observation room with Ms G and looked to her father for support. In this context, Ms G opined that [X] referred to her father as a source of comfort.
Unsurprisingly, Ms G described an emotionally close relationship between [X] and her mother. [X] was affectionate towards Ms Thames and sought her out for comfort and closeness throughout the observed interaction.
As previously indicated, Ms G noted the contents of the controversial Christmas greeting ostensibly sent by the father to [X], whom it is conceded at 2½ years of age is unable to read. The message was as follows:
“To my little [X], words cannot explain. I love you so much. Daddy 2018”[11]
[11] See affidavit of Kate Bishop filed 11 Jan 2019 – Report of Mr A at page 40
In this context, Ms G opined as follows:
“In understanding Mr Decker’s interactions with [X], the writer appreciated that [X] appeared comfortable in her father’s presence and sought him for support when distressed. However, given Mr Decker’s difficulties reflecting upon aspects of his behaviour (including his written descriptions within [X]’s Christmas card), the writer questioned Mr Decker’s capacity to remain child-focused when he was frustrated or agitated, and considered this potentially placed [X] at risk of harm if unaddressed. It was the view of the writer, that to be confident about Mr Decker’s capacity to care in a safe manner, he would need to acknowledge his reactive behaviours and display a capacity to reflect upon his aggression and how this impacts on others. It was further considered that Mr Decker would benefit from learning more developmentally appropriate ways to interact with [X] (which do not rely upon engaging her in the parental conflict).”[12]
[12] See para 144 of the family assessment report
Ms G described the mother as being highly anxious and questioned whether this anxiety might impact upon her long term ability to parent [X] to an optimal degree. However, at present, these concerns were not present given Ms G’s view that [X] had developed a positive relationship with her mother. Ms G also conceded that there was no evidence available to her to make any recommendations regarding either parties’ drug use.
Ms G was concerned that the environment provided by the maternal grandparents was not conducive to the father and [X] being able to interact together comfortably. On the basis of the observed interaction, Ms G seems to have accepted that [X] has a developing relationship with her father. In this context, Ms G opined as follows:
“In recognising the close relationship with at [X] shared with Ms Thames and her maternal family, the writer wondered about the impact of the contact visit environment (Ms Thames’ family home) on the interactions between Mr Decker and [X]. Whilst the writer appreciated that Ms Thames sought to provide [X] with a comfortable and familiar environment to play in, at the same time it was noted that her home had video cameras (which were reviewed by the maternal family) and this understandably created tension for Mr Decker. The writer considered that such an environment was not conducive to developing the relationship between Mr Decker and [X] and would recommend a public space for future visits. Although it was acknowledged that such a recommendation may heighten Ms Thames; anxiety, it was considered that she may benefit from therapeutic support to help manage her anxiety and remain focused on [X]’s relationship needs.”[13]
[13] Ibid at paragraph [148]
In this context, although Ms G questioned the viability of the maternal grandparents’ home as a venue for continuing time spending arrangements, she also recommended that a contact supervisor should remain engaged, who would be able to survey all of Mr Decker’s conversations with [X].
Although it is clear that Ms G had at least some of Mr A’s report, including the Christmas card incident, I am not aware on what incident she specifically bases her concern about the father saying something inappropriate to [X] or why she believes there is a significant probability he will become frustrated by some other than one involving adult members of the maternal family.
Ms G was of the view that the Thames family home was not conducive to [X] developing a more meaningful level of relationship with her father. In this context, she recommended that future time occur in a public space but did not recommend what form this public space should take. She also noted that such an outcome would almost certainly heighten Ms Thames’ level of anxiety. The recommended duration for this time was two hours per week. In this context, Ms G did not consider whether such limited duration would have any impact upon [X]’s apparently viable relationship with her father, particularly in respect of the issue of whether it would retard its prospect for development.
In my view, in contrast to Dr E, Ms G has not considered the possibility that may ultimately prove to be an unreliable historian. In addition, I am concerned that she has provided no information about the duration of the anger management counselling, which she proposes for Mr Decker.
It is the thrust of Ms G’s report that she is of the view that Mr Decker is a person who is likely to become frustrated or agitated, if frustrated. As such, she opines that he needs to acknowledge his reactive behaviours and reflect upon his aggression. The assumption of this statement is that Ms G accepts that Mr Decker is aggressive. It is clearly Ms Thames’ view that he is. Mr Decker acknowledges losing his temper but denies assaulting Ms Thames, other than in response to her aggression towards him.
In these circumstances, I have looked to Ms G’s report in order to ascertain what other factors have led her to the conclusion that Mr Decker is an inherently aggressive person.
In interview with her, Mr Decker consistently expressed his frustration with the family law system and indicated his view that it was weighted against him, given his gender. He also indicated his view that he had been inappropriately denigrated by the mother and her family.
If Mr Decker’s evidence is ultimately found to be correct, it is hardly surprising that he would present in such a fashion. Ms G is also impliedly critical that Mr Decker’s solicitor contacted her, after his interview with her, questioning some aspects of the assessment process. From this, Ms G opined that Mr Decker was reactive to situations and may be quicker to emotionally respond when aggrieved.[14]
[14] See family report at [25]
In addition, Ms G seems to have viewed the statements in the Christmas card, ostensibly addressed to [X], which she cannot read, as also being indicative of a reactive personality. Although it is a matter for the final hearing, I have some concerns that there may not be a sufficiently robust emotional base on which to base Ms G’s conclusion that Mr Decker is a dangerous person because of his emotional reactivity and, as such, Ms G’s recommendations are disproportionate to the degree of risk, which he represents for [X].
In addition, I bear in mind that Ms G’s methodology and recommendations have not, as yet, been subject to any degree of scrutiny through cross-examination. As such, at this juncture, I propose to adopt a cautious response to her report and its recommendations.
The evidence of Ms B
As one would expect, given her relationship to him, Ms B, in the witness box, presented a favourable impression of her son. Ms B is sixty-three years of age and engaged in home duties. As previously indicated, her husband is a labourer. Besides [X], she has four other grandchildren, whose ages range from ten to five. They are the children of her other offspring, her daughter Ms M who is aged thirty-seven years of age.
It is Ms B’s evidence that she is intimately involved in the care of her other grandchildren, providing care for them on a daily basis. She has not seen [X] for a significant period of time and given her love for the child, this is a source of significant regret to her.
It was Ms B’s evidence that her son respects her and does not show any temper to her. She further asserted that she had never seen Mr Decker being violent, although she had observed the signs of violence on him, in the form of scratches and bruises.
Ms B has deposed that she is prepared to supervise any time between [X] and her father and, in the event that Mr Decker behaved inappropriately, either through losing his temper or speaking derogatorily about [X]’s mother to her, she would remove [X] from the situation. In Ms B’s words, “Ms Thames as [X]’s mother deserved to be respected and [she] would not allow [Mr Decker] to say anything about Ms Thames to [X].”
I have no reason to disbelieve Ms B’s oral evidence. However, I also appreciate that she is closely aligned with the father and has her own motivations for supporting him. However, in my assessment, she is not the sort of grandmother who would willingly expose her grandchild to any form of harm. Nor is she the sort of person whose will is likely to be easily overborne. As such, I accept that she would act protectively so far as [X] is concerned. I also appreciate that members of the Thames family do not trust her.
The legal principles applicable
a)How the court determines a child’s best interests
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[15] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[15] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
It is Mr Decker’s position that the current regime is inadequate to ensure that [X] benefits from having a sufficiently meaningful level of relationship with him. As such, he contends that it is necessary for the court to move away from the rigorously supervised circumstances of the Thames home and the involvement of Mr A and make orders which will allow him to spend time with [X] in a more relaxed environment away from what he believes is the unduly critical gaze of the maternal grandparents.
On the other hand, the mother contends that there are very serious risks relating to [X] being exposed to the father’s violent and unpredictable behaviour. Associated with this concern are issues to do with her own capacity to accept an arrangement, for [X], of which she disapproves. These issues have been raised by Ms G, in the family assessment report and have led to her recommendation that the mother seek out some form of psychological support for herself.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
As I understand the mother’s case, she contends that there is a significant risk that Mr Decker may assault [X] or cause her some form of serious psychological harm by speaking inappropriately to her or, in some way exposing her to some form of family violence.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
As I understand the mother’s case, she does not assert that [X] has been “exposed to” family violence in the sense envisaged by the section. She does however assert that [X] has been abused, at some time, when she allegedly contracted the neurological spasms. In this context, the father points to the absence of any corroborating evidence to support this allegation.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home. Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[16]
[16] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case.
In Deiter & Deiter[17], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[17] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [18]
[18] Slater & Light [2013] FamCAFC 4 at [37]
In this particular case, the risks identified by Ms Thames are multi-faceted in nature. They include her own emotional fragility and the concern that she may not be able to cope emotionally with [X] spending time with her father in an environment with which she (the mother) is not completely comfortable. On the other hand, the father asserts that there is a risk that [X] will be deprived of having a proper level of relationship, with her father, on the basis of uncertain allegations and innuendo regarding his alleged psychiatric infirmity.
In B & B[19] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[19] B & B (1993) FLC 92-357 at 79,780
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Consideration
The legislation is clear that protective concerns, in respect of a child, must be elevated over those considerations relating to a child having a meaningful level of relationship with a parent. In my view, this does not mean that I am not required to give significant consideration to the benefits, which are likely to accrue to [X] as a consequence of her having a meaningful level of relationship with her father.
[X] is a child of tender years, not yet three. In general terms, the years of early childhood are important for laying down parent/child relations, which have sufficient resilience to remain intact for the remainder of an individual’s childhood and into adolescence. It is at these early stages that the bonds of intimacy are forged, which allow parent and child to be comfortable with one another without undue exertion. In simple terms, they are just able to hang out with one another because of warm familiarity.
I accept that Mr Decker loves [X] and, on the basis of both Mr A’s evidence and the report of Ms G, consider that [X] currently has a viable relationship with her father, in the sense that the two know one another and [X] is comfortable in his presence. In particular, [X] will seek her father out for comfort and is able to sit in her father’s lap.
Accordingly, in the context of the immediate timeframe, she will derive a significant level of benefit from interacting with her father. In my view, the evidence indicates that the two have a base of familiarity on which to build. This is important. In my view, it would not be helpful, to this relationship, if it was either retrograded or maintained at its existing level for a prolonged period of time.
In order for the relationship to reach its full potential, father and child need to spend a sufficient quantity of time to ensure the most beneficial outcome. In addition, some thought must be given to the quality of that time. Essentially, it will add meaning to the relationship if, in due course, father and child are able to interact with one another in a variety of contexts and settings, not merely one of play, as currently predominantly occurs. It is likely to be helpful if Mr Decker is able to provide parental care, such as providing a meal for [X] and, in due course preparing her for bed and the like activities. These are the nuts and bolts of parenting.
For obvious reasons, these activities are most appropriately undertaken in a parent’s home environment. In respect of one issue, Mr Decker and Ms G are in agreement, namely the Thames family home is not the most conducive environment for him to spend time with [X].
I accept that Mr Decker is frustrated by the current process in which he is involved in respect of seeing [X]. He feels, whether rightly or wrongly, he has been falsely maligned and the system is arraigned against him because of his gender. In this context, he has vigorously asserted his innocence, both with the police, Ms G and in the court. In my view, he is entitled to do so and to question the probity of allegations made against him.
In this context, it is circular in logic to assert that just because he rejects what is said to be the improper aspects of his conduct that he must be lacking insight into the consequences of his behaviour. In my view, the preferable approach, at this interim stage of proceedings, is to adopt the approach utilised by Dr E – whether Mr Decker does lack insight must depend upon the court making a finding of fact that he has behaved violently and coercively towards Ms Thames.
Mr Decker has asserted that Ms Thames has a labile personality herself and is capable of lashing out violently at him, scratching at his face. He has produced his own evidence to support that allegation, which remains unestablished. In my view, I must approach Dr F’s evidence, untested as it is, with some degree of caution. In addition, as she herself indicates, a diagnosis of borderline personality disorder does not, of itself, indicate a propensity to violence.
At some stage, it may be necessary for the court to attempt to analyse what has been the nature of the parties’ relationship with one another and determine whether the catalyst for any improper behaviour in it was the unhappy and stressful situation in which the parties found themselves during its latter stages. The potency of any threat to [X] is likely to be greatly alleviated if the court finds that any violence, in the past, between the parties, was situational in nature.
My fundamental responsibility is to assess the degree of risk Mr Decker may pose to [X] and put in place safeguards proportionate to the risk so assessed. It is the mother’s case that, due to his explosive temper, the father poses a significant degree of risk to [X] because, small children being as they are, he may lose his temper in frustration and lash out uncontrollably.
In this context, it is to be noted that in what must be considered a challenging environment, for a person who is alleged to be highly reactive and unable to control his emotional responses, there are only two allegations of improper behaviour levelled against Mr Decker in respect of his behaviour at the Thames’ home, namely his gesture to Ms Thames, which is denied and the contents of the Christmas card to [X]. In neither incident is it asserted that [X] was directly exposed to this behaviour.
The next issue to be considered concerns whether there is an unacceptable possibility that Mr Decker may assault [X] by throwing or hitting her if, for whatever reason, including the child’s own behaviour, he loses his temper. In this context, in my view, there is no cogent evidence to support the mother’s assertion that he has previously assaulted the child by throwing her or dropping her.
I acknowledge that it is not beyond the bounds of possibility that, out of frustration, Mr Decker, and indeed any other parent, particularly one with a reactive personality, may not lash out in a violent and unpredictable fashion if placed in a situation of stress.
Obviously, caring for a child of tender years can be stressful. However, the evidence of Mr A indicates that the father was able to care for [X] without losing his composure at any stage. I appreciate that, in so doing, Mr Decker had the support and assistance of Mr A and it was Ms Thames’ assessment that what was demonstrated was not the Mr Decker she knew.
However, this supervision has been in place for a period in excess of five months. It is a reasonably lengthy period of time. The time, in challenging circumstances, has gone relatively well. The only incidents of note have involved the adults and not [X].
In my view, the time is right to consider a change in those arrangements. As indicated above, I do not consider that it would be helpful to the advance of the relationship between [X] and her father if that relationship remains temporally restricted for an indefinite period of time.
The mother has two proposals for the father’s time with [X], if it moves away from the Thames family home. Firstly a CCC and secondly the Suburb C public library. I will deal with each of these options in turn, although I appreciate it is the mother’s position that these two intervention are designed to augment one another.
CCCs are not intended to provide supervision of a parent’s relationship with a child for an indefinite period of time in anything other than exceptional circumstances. Part of their rationale is to provide a safe framework for parent/child contact, until the parents concerned are able to move to self-management of their parenting arrangements.[20]
[20] See Children’s Contact Services: Guiding Principle Framework for Good Practice published by the Australian Government Attorney-Generals’ Department and Moose & Moose (2008) FLC 93-375 at [119] – [120]
CCCs are largely funded by the Commonwealth Government. At present, the demand for their services, throughout the country in general and South Australia in particular, is high. As a consequence, there are significant delays in parents being accepted into them. In addition, at best, CCCs can offer no more than two hours of supervised time per fortnight.
Accordingly, the introduction of such an intervention is not likely to advance [X]’s relationship with her father to any great degree. Its primary benefits will be that the time will be take place away from the unconducive confines of the Thames home; the intervention will be cheaper; and it will act as a form of emollient to the mother’s concerns.
Given the length of time Mr A has been providing his form of professional supervision and the lack of incident, I consider the utilisation of a CCC would be an unduly retrograde step in this case. I do not think it would be warranted by the risk I have assessed in the case and it would not necessarily be of assistance in advancing the relationship between [X] and her father to a more meaningful level.
The mother’s ancillary proposal is for a public place, as recommended by Ms G, namely the Suburb C Library under the supervision again of Mr A. In my view, this proposal raises significant logistical uncertainties. I am required to consider the practicality of time spending arrangements [see section 60CC(3)(e)].
Firstly, I have not been advised of what is the attitude of the library authorities to their premises being utilised in this fashion by a family which clearly has many challenging features. Secondly, I do not know whether Mr A is available to assist. Thirdly and most importantly, I do not know for how long this intervention is likely to be required. If it is to be for a prolonged period, it will necessarily retard any degree of development in the relationship between [X] and her father.
Ms G has opined that such rigorous supervision is required until Mr Decker demonstrates sufficient insight into his conduct, the severity of which he disputes. It is uncertain how long it will take for Mr Decker to complete the recommended cause of anger management therapy. It may be a very useful intervention but its exact details are as yet unspecified.
Mr Decker has indicated a willingness to undertake a parenting course and some form of anger management. Given the controversial circumstances of this case, I am concerned that the completion of these things, helpful as they may be, should not become a condition precedent required to be satisfied before [X] can spend more time with her father. I am fortified in this view by the fact that there has already been a course of five months of professional supervision.
It is clear that [X] has a warm and loving relationship with her maternal grandparents [section 60CC(3)(c)]. It is equally clear that she is currently estranged from her paternal grandparents. On the basis of Ms B’s evidence, I have no reason to think anything other than they are each deeply interested in all aspects of [X]’s life and wish to spend time with her.
The applicable legislation recognises that grandparents are potentially important to children. Not only can they be a source of love but they are also able to provide family history to their grandchildren and give them a sense of where they fit in. [21] The same can be said of other relatives.
[21] See Family Law Act 1975 at section 60B(2) and Bright v Bright (1995) FLC 92-570
In this context, I turn to consider the prospect of Ms B providing some form of supervision to achieve a move of [X]’s time away from the Thames family home in order to normalise her relationship with her father by allowing time to occur in a domestic setting with which he is both comfortable and familiar. This raises issues to do with Ms Thames’ ability to cope emotionally with such an outcome and the consequence for [X] herself of any change in the arrangements for her care [section 60CC(3)(d)].
In W and W[22] the Full Court was reluctant to place strict guidelines as to when supervision was required and what form it should take. They said as follows:
“We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
[22] W & W (Abuse allegations; unacceptable risk) (2005) FLC 93-289 at [115]
In this case it is, in my view, highly significant that [X] has been spending time with her father, for a period of around five months, subject to the formal supervision of Mr A. In other cases, the Full Court has generally eschewed regimes envisaging supervised periods of time, between a parent and a child, on an indefinite basis. Rather there must exist a cogent reason or reasons to justify such an approach.[23]
[23] See Gorman & Huffman [2016] FamCAFC 174 at [297]
In W & W, the Full Court spoke of a tension arising between the protection offered to a child by supervised contact with the potential detriments occasioned by the artificiality and limitations offered by such supervision, which can impact on the emotional wellbeing of the child concerned by a curtailment of his or her parental relationship. Supervision has limitations.
Supervision may not provide sufficient time for the fostering of an appropriate parental relationship. It may prevent the parents concerned managing their own parenting relationship with one another. As such, it is, at best, a temporary or stop-gap measure. In my view, all these factors are present in the current matter. The protection required to be provided to [X] must be balance against other possible adverse consequences.
In my view, Ms B is qualified to provide the prerequisite level of supervision, for the father, given the circumstances of this case. I accept that she will act appropriately and protectively, so far as [X] is concerned and will be able to respond to the challenges implicit in acting as a supervisor to her son.
In addition, in my assessment, her presence may act as a conduit to move [X]’s relationship with her father to a more realistic and relaxed form, which is likely to be helpful in the longer term management of the case. In my assessment, her supervision represents a proportionate response to the risk, for [X], arising from the father, as I have assessed it.
I accept, given the manner in which the litigation has been conducted to date, that Ms Thames is not likely to react well to such a decision. However, her reaction is one factor, which must be balanced against others, to reach the outcome which is considered to be in [X]’s best interests.
In this case, Ms G has made recommendations that Ms Thames seek professional assistance to deal with her anxieties. However, at this stage, there is no concrete expert evidence to indicate that she is not emotional capable of dealing with [X] spending modest amounts of time, subject to some form of supervision, with her father.
More particularly, there is no expert evidence to indicate that such an outcome will have dire consequences for her capacity to parent [X] given her status as the child’s primary carer. In any event, I am concerned at the prospect of the advancement of [X]’s relationship, with her father, being placed under some form of indefinite moratorium
One of the difficulties in the case is that neither party has provided a clear and satisfactory pathway to manage [X]’s time, with her father, away from the Thames family home. In this context, I regard the Suburb C library as a stop gap measure and a CCC as a retrograde step.
Logistical difficulties arise in respect of utilising Ms B’s home given it is some distance away from where the mother and [X] currently live. In these circumstances, Mr Decker’s home, said to be in the suburbs of Adelaide and to have four bedrooms, would seem to provide at least a viable location, which is worthy of consideration.
Ms G is concerned that [X] may be discomforted by being subject to an unfamiliar environment for time spending with her father. This may be so. But, in my view, this is not a factor of sufficient moment to militate in favour of the current regime being continued indefinitely. In addition, the same concerns relating to an unfamiliar environment also apply to a CCC and, for all I know, the Suburb C library.
In my view, these factors militate in favour of [X] beginning to spend time, with her father, at a location associated with him, subject to some form of supervision. In the short to medium term I propose continuing the involvement of Mr A in tandem with Ms B at the father’s home.
This arrangement can continue for six weeks and then Mr A’s involvement can cease, with supervision only to be provided by Ms B, at the father’s home. I propose for this six week period, whilst [X] is becoming accustomed to the new location, nominated for her to interact with her father, the time be from 3:30pm to 6:00pm each Saturday.
[X] can be exchanged between the parties, at a public location to be agreed between, initially under the auspices of Mr A and then Ms B. If the parties cannot agreed upon a suitable public venue for handover, the Suburb C library can be utilised.
A more vexed issue is likely to be the duration of time and its frequency once Mr A’s involvement has ceased. In my view, two relatively short periods each week are required to advance the relationship between [X] and her father, I propose between 3.30 pm and 6.00 pm on each Wednesday and Saturday, noting the child has a midday nap, with the time subject to Ms B’s supervision alone. In my view this is a modest and cautious response to this difficult situation, which stems largely from the extreme conflict in the parties relationship.
It would be helpful, for [X], if the parties exchange relevant information about her care, including her dietary requirements; sleeping patterns; any illnesses or medication prescribed for her; and any necessary medical appointments; in a formal way. In this context, I propose the parties exchange emails about these matters regularly and formally.
Although I have not made an order for equal shared parental responsibility, in my view, it is likely to be in [X]’s best interests that each parent is as fully appraised as possible in respect of her developmental needs by such an exchange of information. I propose this exchange occur at 6:00pm each Friday and will direct each party create an email address for this sole purpose of exchanging parenting information about [X].
In this context, I will make an injunction restraining each of them from sing this email exchange to denigrate or abuse the other and will make the usual injunctions in respect of either of them and family members of or friends associated with them behaving in a provocative or inflammatory fashion. As indicated earlier, I will restrain the parties making any social media postings concerning these family law proceedings and the arrangements for [X]’s care between them.
Conclusions
It is clearly inappropriate for the presumption of equal shared parental responsibility to be applied at this interim stage given the serious allegations of inappropriate behaviour each party has levelled at the other. Accordingly, it falls to the court to determine the outcome which it considers will best serve [X]’s interests, against the various criteria set out in section 60CC, bearing in mind the inherent evidentiary limitations of the hearing involved.
Given these strictures, the fundamental task for the court is to assess the prospective dangers for [X], on the one hand, of spending time with a parent who may been violent in the past and, on the other, of the risk of her losing a potentially viable parental relationship with that parent or the relationship concerned being unduly retarded or truncated, perhaps for a lengthy period, on the basis of, as yet, uncertain evidentiary premises.
In all the circumstances, I assess the risk of [X] suffering physical harm, as a consequence of interacting with Mr Decker to be relatively low, certainly not at an unacceptable level. To my mind, the detriments of continuing the regime at the Thames home are greater than potential risks of the time occurring elsewhere. For these reasons, I am satisfied that the cautious arrangements I propose, involving supervision, are appropriate and calculated to be in [X]’s best interests.
These reasons for judgment are unduly lengthy. This is a reflection of the vehemence with which each party has conducted the proceedings and the extent of the material which has been filed. The parties’ property proceedings remain unresolved. Orders of 10 September 2018 envisaged them attending a property mediation conference. No date was stipulated for this to occur and I have not been appraised of its result.
Pending notification of the outcome of any process of conciliation, in respect of that aspect of the proceedings, it is premature to consider whether this court or the Family Court is the appropriate jurisdiction to finally determine the case.
In this context, I need not only consider the needs of the parties concerned in this case but also other users of the court, who do not have the same resources to marshal such extensive material requiring the court’s attention but who also have difficult and controversial cases. I will list the matter for directions in approximately four months’ time to ascertain what the situation with the matter is.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and twenty-four (224) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 7 March 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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